The Korea Herald


[Andrew Wolman] Ending discrimination


Published : Dec. 23, 2010 - 17:49

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On Dec. 18, the U.S. Senate voted in favor of repealing the U.S. military’s controversial “Don’t Ask, Don’t Tell” policy in an emotional 65-31 vote. When President Obama signed the bill into law, a shameful chapter in the U.S. military finally came to an end. The policy, which was implemented by the Clinton administration in 1993, banned openly gay men and women from serving in the U.S. armed forces and led to the firing of over 13,500 servicemembers.

The United States will now join at least 30 other countries that allow gays to serve openly and without discrimination in the military, including South Africa, Israel, Taiwan and the United Kingdom. Korea is not one of those countries. The law currently on the books here ― Article 92 of Military Criminal Code ― prohibits male servicemembers from engaging in same-sex relationships, with penalties of up to a year in prison, and dishonorable discharge. While the majority of Article 92 prosecutions in recent years have been for sexual misconduct involving the use of force, there have also been several cases of prosecutions for consensual sexual activity.

The threat to human rights from the current Korean policy is magnified by the country’s universal conscription policy: in effect, every Korean gay male is required to suppress his sexuality for two years of their life, during military service. Even when it is not enforced, Article 92 represents an official disdain and rejection of the acceptability of same-sex relationships that has repercussions throughout Korean society.

Reforms to Article 92 have been the subject of heated debate within Korea for years. Fortunately, there is optimism that a change in policy may be on the way. In 2008, a military court ruled that Article 92 was unconstitutional, concluding that it was overly vague and violated personal liberty rights and the right to equal treatment under the law. The military court’s ruling is currently under review at the Constitutional Court, with a decision expected soon. Meanwhile, the National Human Rights Commission of Korea has joined the debate, arguing that Article 92 violates rights to privacy and equal treatment, along with the freedom of sexual preference. The Ministry of Defense, on the other hand, remains resistant, claiming that legalizing gay relationships would erode discipline and incite conflict.

Hopefully, the Constitutional Court will uphold the right to equality and the right to privacy by issuing a broad ruling that affirmatively prohibits discrimination of any kind against gays in the military. If not, then Korean human rights advocates should redouble their efforts to pressure the government for legislative change.

Meanwhile in the United States, the repeal of “Don’t Ask Don’t Tell” is an occasion for celebration for those who care about human rights for all. Senator Ron Wyden of Oregon, who managed to attend the vote despite undergoing treatment for prostate cancer, perhaps best summarized the sentiments of the day: “I don’t care who you love...if you love this country enough to risk your life for it, you shouldn’t have to hide who you are.”

The premise that in 2010 American military cohesiveness would suffer from allowing gays and lesbians to serve openly (as opposed to covertly, as they always have) always seemed implausible. According to a mammoth Department of Defense study of 115,000 military personnel, 70 percent of soldiers believe that the impact of repealing “Don’t Ask, Don’t Tell” would be either positive or neutral in nature. Frankly, the repeal is a triumph not only for the gay community and human rights activists, but also for sensible defense policy-making.

It is a special triumph for Korean-American Dan Choi, who became the public face of the fight to repeal “Don’t Ask, Don’t Tell.” Choi, who served as an infantry officer in Iraq in 2006-07, was one of 59 Arabic linguists discharged between 2004 and 2009 under “Don’t Ask, Don’t Tell,” according to the Servicemembers Legal Defense Network. His dismissal illustrated the absurdity of the policy: why are we penalizing proud Americans who risk their lives in Iraq and possess vitally needed language skills just because of their sexual preference? Choi fought so hard for the repeal of “Don’t Ask, Don’t Tell” that he was hospitalized for a nervous breakdown in the week leading up to the Senate vote. He has already applied to reenlist in the army.

The actual process of repealing “Don’t Ask, Don’t Tell” is likely to be slow, and there are pitfalls along the way. It may be a year before the policy is fully consigned to the waste basket of history. But make no mistake: this is a momentous occasion for gay rights in the United States, and for human rights in general. Let us hope that similar progress will soon be seen in Korea.

By Andrew Wolman

Andrew Wolman is an assistant professor of human rights and international law at the Graduate School of International & Area Studies at Hankuk University of Foreign Studies. ― Ed.