Annual Review 2016: Human Rights Situation of LGBTI in South Korea

7. Military

updated 2017.08.09 11:54 by sogilaw

Crime of “disgraceful conduct” in the Military Criminal Act ruled as constitutional and legislative petition for its abolishment

On July 28, 2016, the Constitutional Court ruled the crime of “disgraceful conduct” in the Military Criminal Act as constitutional. This was the third decision of its kind, following those made in 2002 and 2011. The Constitutional Court repeated its decision of 2011 and, regarding the former Article 92-5 of the Military Criminal Act, stated that the provision does not violate the rule of clarity in nulla poena sine lege or infringe upon the right of sexual self-determination, privacy and freedom of private life, and personal liberty of the soldier, and even if homosexual soldiers were to receive discriminatory treatment compared to heterosexual soldiers, this would not violate the principle of equality as it could be seen as a measure with reasonable grounds considering the need to preserve the uniqueness and combat strength of the military.[1] In October 2016, the “Network for Reporting Discrimination and Human Rights Violation against LGBTI in Relation to the Military (Military LGBTI Human Rights Network)” criticized the above Constitutional Court decision and initiated a 10,000-person legislative petition movement for the abolishment of the crime of “disgraceful conduct” in the Military Criminal Act. By January 2017, 12,207 people participated in the legislative petition. On January 1, 2017, the Military LGBTI Human Rights Network submitted the legislative petition to the National Assembly with the aid of MPs Kim Jong-Dae and Lee Jung-mi of the Justice Party.[2], [3]

Discriminatory application of the crime of “disgraceful conduct” in the Military Criminal Act and human rights violation against a gay soldier

On April 25, 2014, a gay man submitted a complaint to the NHRCK, saying that he was charged with the crime of “disgraceful conduct” in the Military Criminal Act and was subject to human rights violations such as forced detention in the military. The incident was brought to light owing to the notification by the victim to human rights organizations and the statements of witnesses who were fellow soldiers.

In 2014, two soldiers in the 37th Infantry Division were investigated for sexual contact. The soldier who revealed that he was a gay when drafted received a suspension of prosecution under Article 92-6 of the Military Criminal Act and was in effect put in forced detention in the Division medical office, deprived of day pass, overnight leave, vacation, telephone and internet use, for five months until he was discharged in May 2015. On the other hand, the other soldier, who claimed to have been subject to involuntary sexual advances as a heterosexual, was not punished.

Even though the soldier who claimed to be gay was of lower rank, had a small frame, and there was circumstantial evidence the sexual act was not forced, he was treated as an offender because of his homosexuality. If a soldier molests another soldier, he should be punished under the “Indecent Act by Force” provision of the Military Criminal Act; however, in this case the gay soldier was prosecuted under Article 92-6 of the Military Criminal Act, which received criticism for being a discriminatory application of the law against gays.[4]

Moreover, it was found that the victim was put in conditions equivalent to imprisonment, as he was confined to the medical office, cut off from external contact for five months, and forced to sit upright all day without being allowed to lie down. The soldier had to undergo psychiatric treatment after developing symptoms of depression and anxiety, and was even sent to the guardhouse for 12 days. The Defense Security Command attempted to cover up this incident by requesting to the solider to keep the case a secret. Also, during the investigation, the military police and investigating officers only focused on revealing whether or not the soldier was a homosexual and asked questions such as “Have you had sex with a man?” and “Have you engaged in homosexual acts while in the military?”, which sparked controversy on violations of an individual’s right of personality.

Human rights organizations filed complaints and held a press conference to point out the rampant homophobia and discrimination in the military and demand that “the Ministry of National Defense actively take measures to prevent recurrence”. They also urged the NHRCK to conduct a thorough investigation into the truth, saying, "This is not a single case of unfairness experienced by an individual gay, but an illustrative example that shows the current state of human rights of gays in the military which are largely hidden”.[5]

NHRCK dismisses complaint on Military Manpower Administration’s attempt to press upon testis removal for transgender person

An MTF transgender person was assigned to Second Militia Service (physical grade V) only after undertaking testis removal orchiectomy, due to the Military Manpower Administration’s requirement for individuals to undergo sterilization in order for them to be exempt from military service. In October 2014, the individual filed a complaint to the NHRCK after surgery stating that this was a human rights violation,[6] but the NHRCK dismissed the case in June 2016. The NHRCK said it dismissed the complaint because “it had been more than one year since the case in the complaint had occurred”.[7] The complainant received the final military service decision on October 2013 and thus filed the complaint within one year of occurrence. Also, even if a year had elapsed since the Military Manpower Administration demanded testis removal, the NHRCK may consider complaints in which the human rights violation had occurred more than one year ago, if deemed important. However, the NHRCK dismissed the complaint one year and eight months after it was filed. In particular, criticism was raised due to the fact that the Military Manpower Administration continued to undertake investigations and prosecution against transgender people for evasion of military service, considering them to be potential military service evaders, and made this decision despite the court’s series of acquittals.

Court acquits transgender persons on charges of evasion of military service

In 2016, the court continued to acquit transgender people who were investigated and prosecuted for evasion of military service by the Military Manpower Administration. In a Military Service Act violation case where a 20-year old was indicted for evading military service, by receiving male-to-female hormone replacement therapy after being diagnosed with “gender identity disorder”, the Second Criminal Affairs Division of the Seoul Southern District Court (Judge Lee Eun-jin, Chief Judge) acquitted the defendant, as was done in the court of first instance.

In November 2010, the defendant submitted a medical certificate for “gender identity disorder” to the Military Manpower Administration and underwent male-to-female hormone replacement therapy 20 times in 2011, experiencing physical changes such as breast development. In November 2011, the defendant was assigned to Second Militia Service (de facto exemption from mandatory military service) for “gender identity disorder”.

The Military Manpower Administration and the prosecution accused the defendant of “using deceptive methods to damage the body and pretend to be transgender in order to evade military service obligations”. However, the court of first instance ruled that the defendant did not to seem to have engaged in deception for evasion of military service, considering that she had taken interest in tending to her appearance since middle school, such as using nail polish or having plastic surgery, and received psychiatric treatment numerous times for depression.[8] Although the prosecutor appealed the decision, the court dismissed the appeal stating that, “The injection of female hormones can cause irreversible changes to the body and is considerably dangerous to use as a method to fake one's symptoms and evade military service”.[9]

Non-operative MTF transgender person wins again in the appellate court for disposition for active duty service revocation suit against the Military Manpower Administration

Following the first instance decision of the Seoul Administrative Court that the disposition for active duty service for a non-operative transgender person by the Military Manpower Administration was illegal, the judgment was upheld in the appellate court. On September 28, 2016, the 5th Administrative Division of the Seoul High Court (Judge Cho Hae-Hyun, Chief Judge) issued a ruling in favor of the plaintiff, upholding the decision of the court of first instance, in a case where a non-operative transgender in her 20s filed a lawsuit against the Commissioner of the Seoul Regional Military Manpower Administration for the revocation of disposition for active duty service.

The Seoul High Court stated in its judgment, "Considering the social perceptions regarding gender identity disorder thus far, it is very difficult for gender identity disorder patients to have their gender identity accepted within the family or by society, and they may experience difficulties in everyday life, such as using existing identification or public restrooms, if they undergo hormone replacement therapy and changes occur in their appearance. In addition, there may be further difficulties in the process of readjusting interpersonal relationships that had been formed based on their biological sex”, and that “As the plaintiff was a 19-year old who had just graduated from high school at the time of the first draft physical examination, it may have been difficult to actively undergo hormone replacement therapy”. From this perspective, the court said, “It cannot be concluded that the plaintiff’s identification with the opposite sex is not substantial or that the social and occupational dysfunction due to the plaintiff’s gender identity disorder is not significant, simply because the plaintiff did not continue to receive hormone replacement therapy”, and ruled that the Military Manpower Administration’s disposition for active duty service to the plaintiff was illegal.[10] The Military Manpower Administration chose not to appeal the decision and the disposition for active duty service to the plaintiff was revoked.

In June 2014, the Military Manpower Administration had issued a disposition for active duty service to the plaintiff claiming that, since the plaintiff did not undergo irreversible surgery such as external genital reconstruction, the plaintiff’s condition was a “speculative diagnosis based on subjective complaints”. In January 2015, the plaintiff filed a suit requesting the revocation of the disposition for active duty service of the Military Manpower Administration, citing that the disposition was illegal as it ignored the fact that the plaintiff had discomfort as a man, but had the sense of identity as a woman.

[1] Constitutional Court of Korea decision 2012Hun-Ba258, 7/28/2016
[2] “Abolish the crime of ‘disgraceful conduct’ in the military … legislative petition for ‘protection of LGBTI rights’”, Newsis, 1/17/2017
[3] For more information, see: 1. Criminalization
[4] “Article 92-6 of the Military Criminal Act”, The Hankyoreh, 5/1/2016
[5] “LGBTI rights violation in the 37th Infantry Division shows current state of LGBTI rights”, OhmyNews, 4/28/2016
[6] “Genital reconstruction demanded for transgender person’s exemption from mandatory military service … Complaint filed to National Human Rights Commission”, Yonhap News, 10/22/2014
[7] Rectification Human Rights Violation Committee 2 of the National Human Rights Commission of Korea decision 14-Complaint-0891200, 6/30/2016
[8] Seoul Southern District Court decision 2015Go-Dan1965, 10/22/2015
[9] Seoul Southern District Court decision 2015No1751, 7/22/2016
[10] Seoul High Court decision (confirmed) 2015Nu70807, 9/28/2016