By Lucy Caulkett-
A South Korean Supreme Court ruling that having children of minor age should not immediately be the reason to refuse to acknowledge the legal gender of transgender persons is an important step forward for human rights, Amnesty International said.
A report by Allard K. Lowenstein International Human Rights Clinic at Yale Law said that Lesbian, gay, bisexual, and transgender (LGBT) people in South Korea experience isolation and mistreatment in schools, Human Rights Watch and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School
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It found that bullying and harassment, a lack of confidential mental health support, exclusion from school curricula, and gender identity discrimination are particularly pressing concerns for LGBT students. The South Korean government should implement antidiscrimination protections and ensure that LGBT youth have supportive resources to safeguard their health and education.
Human Rights Watch and the Lowenstein Clinic at the time interviewed 26 current and former students, and 41 teachers, parents, service providers, and advocates primarily based in Seoul, in Cheongju, North Chungcheong Province, and in Cheonan, South Chungcheong Province
Many of the students said that they felt isolated when they realized they were lesbian, gay, bisexual, or transgender, and had no support when they were mistreated.
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“This decision by the Supreme Court opens the door for more recognition of transgender rights, but there is still a long way to go given the high level of discrimination and stigmatization LGBTI people face in South Korean society,” said Jihyun Yoon, Director of Amnesty International Korea.
The National Human Rights Commission of Korea (NHRCK), like many other domestic and international human rights bodies, has affirmed that LGBT people are entitled to the same human rights as everyone else. Even as domestic public opinion warms to LGBT rights and neighbouring governments take steps toward LGBT equality, however, South Korea’s government has failed to make meaningful progress, citing intense religious and conservative opposition to justify inaction.
Amnesty International said that in coming to this decision and partially overturning its previous decision from 2011 – the Supreme Court affirmed the rights of transgender individuals to dignity, happiness and family life.
The Court emphasized that transgender individuals have rights to be legally recognized according to their gender identity and have the same rights and obligations under law to have family life. It added that legal gender recognition doesn’t fundamentally change the responsibilities or positions of the transgender parents, nor the rights of minor children.
Gender recognition has long been controversial in many societies, especially communist countries where cultural norms and laws are particularly stringent.
The absence of laws governing legal gender recognition in South Korea, which means that applicants must apply for legal gender recognition through the courts in accordance with the “Guidelines for the Handling of Petition for Legal Sex Change Permit of Transgender People” adopted by the Supreme Court in 2006.
These guidelines include abusive or discriminatory requirements, such as not having children under 19 and being at least 19 years old themselves, as well as being unmarried, diagnosed with “transsexualism” and having undergone hormone therapy and been sterilized.
“This ruling addresses only one of the many discriminatory requirements in the guidelines, but it can be an important step towards the depathologization of legal gender recognition processes in South Korea,” Jihyun Yoon said.
“The government must ensure that legal gender recognition is not contingent on psychiatric diagnosis, medical treatments such as forced sterilization and genital reconstruction surgery, or other abusive or discriminatory requirements such as marital status or not having children. Instead, it must be a quick, accessible and transparent administrative process based on individual self-determination.”
BACKGROUND
This is the first time South Korea’s Supreme Court has handed down a ruling on legal gender recognition in 11 years, following a 2011 decision denying such recognition to an individual with minor children (under 19 years old).
Amnesty International provided a submission to the Supreme Court on international legal standards with regard to the right of legal gender recognition.
According to research commissioned by the National Human Rights Commission of South Korea in 2020, the preconditions required by courts and the related financial, physical and mental burden contributed to the decision of many transgender individuals not to seek legal gender recognition.
The right to legal gender recognition is derived from a number of fundamental rights protected in both domestic and international law including the rights to self-determination, privacy and health.
Without legal gender recognition and other social reforms to eliminate stigma, transgender individuals are more likely to continue to face violence and discrimination and a number of negative social and economic outcomes such as lack of access to employment.
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