From dating to marriage for all, the difficult legal, political, and social question of LGBTI+ relations in South Korea

Written by: Clara Delhaye
Translated by: Lou Szabo

At the end of February 2023, the Seoul High Court handed down a landmark ruling on marriage for all. The court recognized that same-sex couples should enjoy the same health insurance rights as heterosexual couples. In this case, two men, having had a symbolic marriage, can benefit from each other’s health insurance scheme. According to the court, if this is not the case it constitutes discrimination based on sexual orientation^[1]YOON L, (22 February 2023), South Korea Court Recognizes Equal Benefits for Same-Sex Couple, HRW.org, https://www.hrw.org/news/2023/02/22/south-korea-court-recognizes-equal-benefits-same-sex-couple. However, the national health insurance fund is appealing to the Supreme Court, as it considers that it has not breached the principle of equality. How does the issue of marriage and same-sex relationships expose the growing divide in South Korea?

The legal and political lack of interest regarding the issue of marriage for all in South Korea

In South Korea, same-gender relations are not criminalized, i.e., homosexuality is not punished. However, there is one exception: according to article 92-6 of the Korean Military Code, “Any person who engages in anal intercourse (…) or any other indecent act is liable to imprisonment with hard labour for not more than two years^[2]Republic of South Korea, (1962), Military Criminal act, Article 92-6, https://elaw.klri.re.kr/eng_mobile/viewer.do?hseq=40239&type=sogan&key=3 TRAD: « A person who commits anal intercourse … Continue reading. [Free translation]. Homosexual relations are therefore prohibited and punished during the compulsory military service of Korean men. In theory, this article is discriminatory, 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^[3]Republic of South Korea, (2009), National Human Rights Commission of Korea act, Article 2, TRAD: “discriminatory act of violating the right of equality” means an act which falls under any of the … Continue reading [Free translation]. In practice, Korean courts have never declared the article unconstitutional^[4]LEE H.J, (31 March 2022), “Case Analysis: Non-Criminalization of Same-Sex Relations”, Interdisciplinary studies in Human Rights, vol. 8, Springer, pp.187-209, … Continue reading despite requests from international NGOs^[5]HRW, (7 March 2019), Amicus Brief: Repealing Article 92-6 of the Republic of Korea’s Military Criminal Act, hrw.org,  … Continue reading. Furthermore, even though certain texts, such as the one mentioned above, prohibit discrimination based on sexual orientation, in practice, protection for LGBTI+ people remains “limited and unequal” according to ILGA^[6]ILGA World, (décembre 2020), Les lois sur l’orientation sexuelles dans le monde, ILGA.org, https://ilga.org/sites/default/files/downloads/ENG_ILGA_World_map_sexual_orientation_laws_dec2020.png. Faced with this reality, several reforms were proposed in 2007, 2010 and 2013 to strengthen the legal arsenal against discrimination based on sexual orientation, but none of them came to a vote^[7]KIM J., BONG Y., (17 April 2015), “Over the Rainbow: Public Attitude Toward LGBT in South Korea”, The Asian Institute for Policy Studies, vol 4, … Continue reading. This demonstrates a real lack of political interest in the issue.

This raises the question of marriage for all, which makes relationships between people of the same gender visible and legal. According to article 800 of the Civil Code, “any adult may freely enter into a marital commitment^[8]République de Corée, (1958) Code civil, Article 800., https://elaw.klri.re.kr/eng_service/lawView.do?hseq=29453&lang=ENG TRAD : “Any adult person may freely enter into a matrimonial … Continue reading. One might assume that same-gender marriage is possible, however, the text refers only to different-sex couples. The Civil Code should therefore be reformed to include same-sex couples, since as the law currently stands, same-sex marriage is prohibited.

However, South Korea is seemingly not ready for this reform. Firstly, because the current government is conservative, with President Yoon Seokyoul supporting article 92-6 and refusing to address the issue of same-sex marriage during his presidential campaign^[9]HRW, (29 February 2022), South Korea: Candidates Speak Out on Human Rights, hrw.org, https://www.hrw.org/news/2022/02/28/south-korea-candidates-speak-out-human-rights .

This government position is aligned with several decades of lack of interest in the matter. There had been some hope in 2014, when the mayor of Seoul spoke of his positive stance on the rights of LGBTI+ people and his desire to be the first country in Asia to recognize marriage for all^[10]KIM Jiyoon, BONG Youngshik, (17 April 2015), “Over the Rainbow: Public Attitude Toward LGBT in South Korea”, The Asian Institute for Policy Studies, vol 4, en.asaninst.org, … Continue reading. Then, in the same year, South Korea voted in favour of a United Nations resolution on LGBTI+ people and the discrimination they suffer^[11]HRW, (26 September 2014), UN: Landmark Resolution on Anti-Gay Bias, hrw.org, https://www.hrw.org/news/2014/09/26/un-landmark-resolution-anti-gay-bias . However, during the same year, a proposal was put to the Korean General Assembly to create a form of PACS for same-gender unions, was it not even put to the vote^[12]KIM Jiyoon, BONG Youngshik, (17 April 2015), “Over the Rainbow: Public Attitude Toward LGBT in South Korea”, The Asian Institute for Policy Studies, vol 4, en.asaninst.org, … Continue reading. In the face of these progressive movements, the 2016 elections were buoyed by a presidential campaign with an “anti-gay” rhetoric^[13]YI, J., JUNG, G. & PHILLIP, J. (03 January 2017), “Evangelical Christian Discourse in South Korea on the LGBT: the Politics of Cross-Border Learning”, Soc 54, 29–33, … Continue reading. Additionally, to being anti-marriage for all, the candidates relied on courts that had refused to recognize marriage for all^[14]Pride Legal, South Korea LGBT Laws, https://pridelegal.com/south-korea-lgbt-laws/. More recently, in 2021, the government and the Ministry for the Family were discussing whether the term family should include, in its legal definition^[15]BERGSTEN S, (3 February 2021), ‘Family’ in South Korea Should Include Same-Sex Couples, hwr.org, https://www.hrw.org/news/2021/02/04/family-south-korea-should-include-same-sex-couples”, unmarried couples living with children or single parents raising their children, without the latter being married. Nevertheless, the government has refused to address the issue of same-gender parents ^[16]BERGSTEN S, (3 February 2021), ‘Family’ in South Korea Should Include Same-Sex Couples, hwr.org, https://www.hrw.org/news/2021/02/04/family-south-korea-should-include-same-sex-couples . These examples demonstrate a distinct lack of government will, avoiding the subject rather than debating it.

The growing visibility of lesbian and gay relationships despite existing obstacles

South Korea is faced with a real paradox: while marriage for all is still not legal and supported by the government, LGBTI+ youth seem quick to appropriate new spaces such as the Internet, entertainment or even the street with “pride” to make couples and relationships between LGBTI+ people more visible. In terms of marriage for all, a 2015 study by the Asan Institute for policy studies^[17]KIM Jiyoon, BONG Youngshik, (17 April 2015), “Over the Rainbow: Public Attitude Toward LGBT in South Korea”, The Asian Institute for Policy Studies, vol 4, en.asaninst.org, … Continue reading, found that the younger the respondents, the more tolerant they are of homosexuality and the more they support marriage for all. According to an IPSOS survey of over 19,000 people in 27 countries around the world in 2021^[18]IPSOS, (7 May 2021), LGBT+ Pride 2021 Global Survey, IPSOS.com, … Continue reading, 4% of respondents in South Korea identified themselves as lesbian, gay or bisexual. These are mainly women from Generation Z or millennials. However, while these people admit to being LGB, very few of those surveyed go to LGBTI+ events or LGBTI+ bars.

The figures are difficult to ascertain, because in the Republic of Korea, it is difficult for LGBTI+ people to be “out”, i.e., to publicly express and experience their sexual orientation or relationship^[19]Center for global education Chapman University, (2020), LGBTQIA+ Country guide, chapman.edu, https://www.chapman.edu/international-studies/_files/lgbtq-country-specific.pdf. They are most often out only to those close to them. What’s more, even when they are open about their sexual orientation, the reality of dating is different from that in Europe, for example. Several young lesbian women have explained that they must register anonymously on online forums^[20]KIM E, KIM H, LEE K, (September 2021), “A qualitative investigation of the romantic relationship experiences. of South Korean lesbians in early adulthood”, Psychology & Sexuality, vol 13, … Continue reading, while others explain that there are specialized lesbian dating pages on university websites. Women often have anonymous profiles. Some encounters can take place in real life, and districts within Seoul such as Itaewon^[21]BOUHOURS D, (07 novembre 2022), La reine d’Itaewon, plongée au cœur de la communauté LGBTQ+ à Séoul, lepetitjournal.com,  … Continue reading are known for their openness and the existence of more or less hidden LGBTI+ bars.

However, the majority of Korea, and Seoul in general, remains conservative^[22]MITSANAS M, (28 November 2022), South Korea’s LGBTQ community confronts crushing headwinds in fight for equality, nbcnews.com,  … Continue reading. As a result, events such as prides and LGBTI+ festivals are poorly attended. In 2022, the Seoul Pride counted around 15,000 participants, compared to around 500,000 in Paris for the same year. This difference can be explained in several ways. Firstly, the fact that so few people come out about their sexual orientation makes it difficult for them to go, as they may be afraid of being recognized. Furthermore, in Europe, LGBTI+ people benefit from the presence of allies at prides, which is not currently the case in Korea. According to the IPSOS survey, only 19% of non-LGBTI+ respondents say they oppose discriminatory discourse towards LGBTI+ people^[23]IPSOS, (7 May 2021), LGBT+ Pride 2021 Global Survey, IPSOS.com, … Continue reading.

As a result, LGBT+ nightlife and events are struggling to really take root in the Korean landscape, despite a real desire on the part of young people to be more and more visible. It is undoubtedly through pop culture that the Korean LGBT+ community is gaining visibility. Recent years have seen a number of LGBT+ projects, such as the creation of LGBTI+ dating shows^[24]PUAH Z, (16 June 2022), Korean streaming platform Wavve to launch two LGBTQ+ reality shows, nme.com, … Continue reading, the development of on-screen LGB romances such as the series Nevertheless or Love with Flaws, the creation of YouTube channels^[25]Kelseythekorean or Channel Gimcheolsoo, https://www.youtube.com/channel/UCxIn86kOCBCgVqrJtJB6JqA in KWON J, (30 June 2020), Meet the Creators of a Korean YouTube Channel, Giving LGBTQ People a Safe … Continue reading, lesbian women’s blogs^[26]규지니어스, blog.naver.com, https://blog.naver.com/PostList.naver?blogId=kyugenius, and the coming out of celebrities such as Holland and Moonbyul. It can also be assumed that this is a form of “compliance” with the West, which is consuming more Korean pop culture and thus demanding more representation of gender and sexual minorities^[27]KAY S, (13 May 2022), How K-Dramas Could Improve Their Representation of International Audiences Considering Their Global Popularity, kpopmap.com, … Continue reading. 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^[28]BASK M, (18 October 2021), Here are the best LGBT-inclusive Korean dramas to binge immediately, thepinknews.com, https://www.thepinknews.com/2021/10/18/squid-game-queer-korean-dramas-lgbt-gay/. However, despite all these advances, which are beginning to change the face of the issue of marriage for all and LBGTI+ couples in general, South Korea is still traversed by movements that are firmly opposed to it.

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

There is a real rift between the youth and the government, to which are added some opposing movements that seem intent on blocking the youth and their demands. While some Seoul mayors have said they are in favour of LGBTI+ couples and want to move forward on the issue, others, like Won Soon Park in 2014, have not recognized the Seoul Charter of Human Rights, which condemns discrimination based on sexual orientation. The main opponents of this charter were conservative Christian groups.

It is interesting to note that certain religious groups, being close to conservative groups, influence their positions and seem to possess sufficient power to prevent such a text from being adopted. This pressure from religious groups comes, for example, from evangelical Christians. The latter are a minority in South Korea, but they draw on the discourse of American evangelicals to oppose the rights of LGBTI+ people, and particularly their union^[29]YI, J., JUNG, G. & PHILLIP, J. (03 January 2017), “Evangelical Christian Discourse in South Korea on the LGBT: the Politics of Cross-Border Learning”, Soc 54, 29–33, … Continue reading. They are an active group, despite their numbers, and above all they are truly invested in the matter. Furthermore, Christians in general have carried out anti-LGBTI+ actions, notably at Seoul’s queer culture fest in 2015, coming to march against marriage for all^[30]JU HUI J.H, (4 July 2016), “The politics of homophobia in South Korea”, East Asia forum quarterly, https://search.informit.org/doi/epdf/10.3316/informit.337983484278942. There was a real desire to oppose the rights of LGBT+ people, and to do so in a physical way. Even if the demonstration was peaceful, it was a symbolic action because it took place during the presidential campaign.

These examples align with the various graphs published by the Asian Institute for Policy Studies^[31]KIM Jiyoon, BONG Youngshik, (17 April 2015), “Over the Rainbow: Public Attitude Toward LGBT in South Korea”, The Asian Institute for Policy Studies, vol 4, en.asaninst.org, … Continue reading which estimates that the main groups opposed to same-sex relationships, couples and marriages are men over 40 and religious groups. For some researchers^[32]YANG S. (2021), “Young Generation’s Perceptions of Same-Sex Sexuality and Attitudes Toward Same-Sex Marriage in South Korea”, Sage open, vol 9, … Continue reading, this is actually more a matter of misunderstanding and ignorance of gay and lesbian people than of real opposition and violence towards their relationships and marriages.

However, violence does exist. In particular, Human Rights Watch produced a report at the end of 2021 on violence suffered by LGBTI+ students at school^[33]HRW, (14 September 2014), Neglecting the Rights of LGBT Youth in South Korean Schools, HRW.org, … Continue reading. The report describes insulting comments made by both teachers and students, sexual violence committed when one of the students is out, and harassment based on sexual orientation^[34]HRW, (14 September 2014), Neglecting the Rights of LGBT Youth in South Korean Schools, HRW.org, … Continue reading. In its report, the NGO asserts that such violence could be curbed by programs within the national education system that include debates on subjects 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 shown itself to be rather progressive. With this ruling, the judges are displaying an understanding of the current realities in South Korea: LGBT+ couples exist and cannot be forever invisibilised by the law. The government’s lack of interest in or disregard of these issues is becoming increasingly hard to tolerate for one part of the Korean population but satisfying for another. The divide is social, religious, and political.

On a more global level, this is an issue that is being discussed throughout the Asian continent. Some countries have moved forward on the issue, such as Taiwan, which legalized marriage for all in 2019. Or Japan, where the issue is currently at the heart of debate. In the years to come, Asia could draw inspiration from its youth and emancipate itself.