Is it illicit to be homosexual in South Korea?

Written by: Clara Delhaye
Translated by: Lou Szabo

In late February of 2023, the Seoul High Court issued a significant decision concerning matrimony for everyone. The court acknowledged that same-sex pairings should be granted equivalent health insurance benefits as heterosexual partners. In this instance, two males, following a symbolic marriage, are able to profit from each other's health insurance coverage. As per the court's determination, failure to do so constitutes discrimination based upon sexual identity. Nevertheless, the national health insurance fund is appealing to the Supreme Court, contending that it has not contravened the principle of equality. How does the subject of matrimony and same-sex relationships illuminate the increasing disparities within South Korea?

The deficiency of legal and political enthusiasm pertaining to the matter of marriage for all in South Korea

In South Korea, same-gender relations are not criminalized; that is, homosexuality is not punishable. However, there's one exception: according to article 92-6 of the Korean Military Code, "Any individual who engages in anal intercourse (…) or any other indecent action is subject to imprisonment with arduous labor for a maximum of two years." [Free translation]. Homosexual relationships are therefore forbidden and penalized during the mandated military service of Korean males. In theory, this statute is discriminatory, seeing as article 2 of the Act for the Human Rights Commission of Korea specifies that a '‘discriminatory act violating the right to equality is an act that falls under any of the following, without a valid reason, based on (…) sexual inclination' [Free translation]. In actuality, Korean courts have never deemed the article unconstitutional, notwithstanding appeals from international NGOs. Furthermore, even though certain texts, such as the one mentioned above, prohibit discrimination based upon sexual orientation, in practice, protection for LGBTI+ individuals remains 'restricted and uneven' in the view of ILGA. In the face of this circumstance, several reforms were proposed in 2007, 2010, and 2013 to strengthen the legal provisions against discrimination predicated on sexual orientation, although none of them were brought to a vote. This underscores a definite lack of political engagement concerning the issue.

This raises the matter of matrimony for all, which renders relations between individuals of the same gender visible and lawful. Per article 800 of the Civil Code, 'any grown-up can freely embark on a marital union.' One might posit that same-gender marriage is permissible; nonetheless, the text alludes only to opposite-sex couples. The Civil Code ought, therefore, to be reformed to incorporate same-sex couples, because as the law currently stands, same-sex marriage is prohibited.

However, South Korea appears not yet prepared for this reform. Firstly, because the current government is conservative, with President Yoon Seokyoul backing article 92-6 and demurring to tackle the topic of same-sex marriage during his presidential campaign.

This governmental stance aligns with numerous decades of absence of interest in the matter. There had been a glimmer of optimism in 2014 when the mayor of Seoul expressed his favorable stance on the rights of LGBTI+ people and his desire to be the pioneer nation in Asia to recognize marriage for all. Subsequently, in the same year, South Korea voted in favor of a United Nations resolution on LGBTI+ people and the discrimination they experience. However, during the same year, a proposition was introduced to the Korean General Assembly to establish a form of PACS for same-gender unions; this was not even brought to a vote. Amidst these progressive movements, the 2016 elections were stimulated by a presidential campaign with an 'anti-gay' rhetoric. Additionally, in addition to being anti-marriage for all, the candidates relied on courts that had declined to recognize marriage for all. More recently, in 2021, the government and the Ministry for the Family deliberated whether the term family ought to incorporate, in its legal definition, unmarried couples cohabitating with children or single parents raising their children, without the latter being married. Despite this, the government has refused to address the matter of same-gender parents. These instances highlight a palpable lack of governmental resolve, dodging the topic rather than debating it.

The rising prominence of lesbian and gay relationships despite existing obstructions

South Korea confronts a genuine paradox: while matrimony for all remains illegal and unsupported by the government, LGBTI+ youth seem quick to embrace novel spaces such as the Internet, amusement, or even the street with "pride" to render couples and relationships between LGBTI+ individuals more visible. Regarding matrimony for all, a 2015 study by the Asan Institute for policy studies revealed that the younger the respondents, the more tolerant they are of homosexuality and the more they champion matrimony for all. Based on an IPSOS survey of over nineteen thousand individuals across twenty-seven nations worldwide in 2021, 4% of respondents in South Korea self-identified as lesbian, gay, or bisexual. These are primarily women from Generation Z or millennials. Despite this, while these people admit to being LGB, very few of those polled frequent LGBTI+ events or LGBTI+ bars.

The figures are challenging to ascertain, because in the Republic of Korea, it is difficult for LGBTI+ people to be 'out,' i.e., to openly express and experience their sexual orientation or relationship. They are most often open only with those close to them. What's more, even when they are frank about their sexual orientation, the reality of dating is disparate from that in Europe, for instance. Numerous young lesbian women have stated that they must register anonymously on online forums, while others elucidate that there are specialized lesbian dating pages on university websites. Women commonly maintain anonymous profiles. Certain encounters can transpire in real life, and districts within Seoul, such as Itaewon, are acknowledged for their openness and the existence of more or less covert LGBTI+ bars.

However, the majority of Korea, and Seoul in general, remains conservative. As a result, events such as prides and LGBTI+ festivals have low attendance. In 2022, the Seoul Pride encompassed approximately fifteen thousand participants, contrasted with around five hundred thousand in Paris for the same year. This disparity can be clarified in diverse ways. Initially, the fact that so few individuals come out about their sexual orientation makes it difficult for them to attend, as they may be apprehensive of being recognized. Furthermore, in Europe, LGBTI+ people benefit from the presence of allies at prides, which is not presently the situation in Korea. In accordance with the IPSOS survey, only 19% of non-LGBTI+ respondents assert that they oppose discriminatory discourse directed toward LGBTI+ people.

Consequently, LGBT+ nightlife and gatherings are struggling to truly take root in the Korean landscape, in spite of a genuine aspiration on the part of young individuals to be increasingly visible. It's undoubtedly through pop culture that the Korean LGBT+ community is gaining visibility. Recent years have seen a plethora of LGBT+ projects, such as the advent of LGBTI+ dating shows, the evolution of on-screen LGB romances like the series Nevertheless or Love with Flaws, the establishment of YouTube channels, lesbian women's blogs, and the coming out of celebrities such as Holland and Moonbyul. It can also be assumed that this is a form of 'conformity' with the West, which is consuming more Korean pop culture and thus demanding greater representation of gender and sexual minorities. Regardless of the reasons, the inclusion of LGBTI+ people is contributing to greater acceptance and understanding of LGBT+ realities for those concerned in South Korea. However, despite all these advancements, which are beginning to alter the facade of the issue of marriage for all and LBGTI+ couples in general, South Korea is still permeated by movements that are adamantly opposed to it.

Opposition to marriage for all: pervasive latent conservatism in South Correa

There's a genuine schism between the youth and the government, to which are added certain opposing movements that seem resolved to impede the youth and their demands. While some Seoul mayors have stated that they are in favor of LGBTI+ couples and wish to advance on the matter, others, such as Won Soon Park in 2014, did not acknowledge the Seoul Charter of Human Rights, which denounces discrimination predicated on sexual orientation. The primary adversaries of this charter were conservative Christian groups.

It's worthwhile to note that particular religious groups, being closely aligned with conservative factions, influence their stances and seem to possess sufficient influence to forestall such a text from being adopted. This pressure from religious groups stems, for instance, from evangelical Christians. The latter are a minority in South Korea, though they draw upon the discourse of American evangelicals to oppose the rights of LGBTI+ people, and especially their union. They represent an active group, notwithstanding their numbers, and above all, they are genuinely invested in the matter. Furthermore, Christians in general have undertaken anti-LGBTI+ actions, notably at Seoul's queer culture fest in 2015, coming to demonstrate against matrimony for all. There was a tangible aspiration to oppose the rights of LGBT+ people, and to do so in a physical manner. Even if the demonstration was peaceful, it was a symbolic action because it occurred during the presidential campaign.

These illustrations correspond with the various graphs published by the Asian Institute for Policy Studies, which estimates that the primary groups opposed to same-sex relationships, pairings, and marriages are men over forty and religious groups. For some researchers, this is actually more a matter of misunderstanding and ignorance of gay and lesbian individuals than of genuine opposition and violence toward their relationships and marriages.

Nevertheless, violence does exist. In particular, Human Rights Watch produced a report at the end of 2021 on violence endured by LGBTI+ students in schools. The report delineates insulting remarks made by both teachers and students, sexual violence committed when one of the students is out, and harassment grounded in sexual orientation. In its report, the NGO asserts that such violence could be mitigated by programs within the national education system that encompass debates on topics relating to the LGBTI+ community.

A country divided between conservatism and progressivism

The Seoul High Court, in recognizing a gay couple's access to social rights, has proven itself to be rather progressive. With this ruling, the justices are exhibiting an understanding of the prevailing realities in South Korea: LGBT+ couples do exist and cannot be perpetually made invisible by the law. The government's lack of interest in or disregard of these issues is becoming increasingly hard to tolerate for one segment of the Korean populace but gratifying for another. The divide is social, religious, and political.

On a more overarching scale, this is a subject that's being discussed across the Asian continent. Certain countries have made strides on the subject, such as Taiwan, which legalized matrimony for all in 2019. Or Japan, where the issue is currently at the forefront of debate. In the forthcoming years, Asia could draw inspiration from its youth and liberate itself.