In review: the LGBTI Law Committee at the 2019 IBA Annual Conference in Seoul

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On 23 September 2019, the second day of the IBA Annual Conference in Seoul, South Korea, the LGBTI Law Committee presented its two most successful sessions so far.

The first session was held at 0930–1045. It was titled ‘Asian values and legal systems: opportunities and setbacks for advancement of LGBTI rights and interests in enterprises, employment, immigration, property relations and related matters’. It was supported by the Diversity and Equality Law Committee and the Immigration and Nationality Law Committee, and it netted the second highest number of attendees in the committee’s history and was even featured in the 24 September 2019 edition of the IBA Daily News (www.ibanet.org/Conferences/seoul-daily-news).

Among the panellists were Peter Dernbach (Winkler Partners, Taipei), Ally Bolour (Bolour Immigration Group, California), Rajen Ramiah (Siam City Law/Nishimura, Bangkok), Remy Choo Zheng Xi (Peter Low and Choo LLC, Singapore) and Carol Zhu (Zhong Lun Law Firm, Shanghai).   

The South Korean speaker for this session was Seoyeon Ahn, a partner at Gangnam LLP in Seoul. She explained that perception of sexual minorities in South Korea is very low. But, there has been some improvement in the last few years. There is strong sentiment against sexual minorities in South Korea, and this sentiment strongly emanates from Christian conservatives. She lived most of her life in South Korea but resided in the United Statesfor a while. She observed that in the US, LGBTI individuals are easily accepted by the community – even American children are open to the concept of sexual diversity. By comparison, it would be difficult to even imagine such level of acceptance happening in South Korea.

Ms Ahn stated that under Article 11 of the Constitution of the Republic of Korea, all citizens are considered equal before the law, and there shall be no discrimination in the political, economic, social or cultural life on account of sex, religion or social status. This constitutional fiat on non-discrimination is embodied by the National Human Rights Commission (NHRC) Act,^[3] the Administration and Treatment of Correctional Institution Inmates Act,^[4] the Act on the Execution of Criminal Penalties In the Armed Forces^[5] and the Treatment of Military Inmates.^[6] These laws prohibit discrimination on the basis of sexual orientation. Nonetheless, the Military Criminal Act^[7] prohibits anal intercourse between soldiers. This policy was upheld by the Constitutional Court as a valid way to maintain discipline within the military.

South Korea does have a law on seeking asylum but Ms Ahn emphasised that only 4.1 per cent of applications are granted. But when it comes to LGBTI asylum seekers, there have been only three cases thus far, involving refugees from Nigeria, Pakistan and Uganda. According to the Supreme Court, there should be concrete evidence of persecution by reason of sexual orientation and that a person’s sexual orientation had already been well-known in the country of origin before said person can be recognised in South Korea as a refugee.

The second session was conducted between 1430 and 1545 and was titled ‘From East to West: developments and issues in the advancement and protection of the rights of transgender and non-binary people’. It was supported by the Family Law Committee and was the most attended session of the committee’s history thus far. Issues such as the right to identity, the right to change name, the right to marry or enter into civil unions, and non-discrimination for transgender and non-binary people were discussed.

The panellists for this session were Stephen Page (Page Provan, Brisbane), Asaf Orr (Senior Staff Attorney and Director of the Transgender Youth Project at the National Center for Lesbian Rights, New York), Todd Solomon (McDermott Will and Emery, Chicago), and Hanim Hamzah (ZICO Law, Singapore).

South Korea was represented by Hanhee Park, the first South Korean transgender lawyer.

Ms Park is an attorney-at-law and transgender rights advocate in the Republic of Korea and has membership of Korean Lawyers for Public Interest and Human Rights and the Korean Society of Law and Policy on Sexual Orientation and Gender Identity. She is a steering committee member of Rainbow Action Against Sexual-Minority Discrimination, which is a coalition of 39 LGBTI rights NGOs in the Republic of Korea. She is also a committee member of South Korean NGOs’ Coalition for Enactment of Anti-discrimination Law. Her major advocacies are about LGBTI rights, freedom of assembly, and anti-discrimination.

According to Ms Park, transgender people are subject to discrimination and hatred. She mentioned that in a 2014 survey participated in by 3,000 LGBTI people, more than half responded that they had been subject to discrimination and violence. The survey showed that transgender people were particularly vulnerable. She stated that South Korea’s sexual identity system is firmly determined by the sex at birth and cultural stereotypes. The survey also revealed that transgender people were found to be in a lower socio-economic position among LGBTI people. Ms Park mentioned that there is no third gender option in South Korea.^[8]

Despite the discrimination faced by transgender people in South Korea, there is no comprehensive anti-discrimination law in place. There is also no law penalising hate crimes in South Korea. She did, however, mention that the NHRC Act specifies that there should be no discrimination on the basis of sexual orientation. The NHRC is empowered to investigate and make recommendations in cases of discrimination based on gender identity. The NHRC’s recommendations, however, do not have compulsory effect.

As to what requirements must be satisfied before one undergoes sex reassignment surgery, Ms Park stated that in 2006, the Supreme Court issued guidelines.^[9] Per the guidelines, only an unmarried person, who has no underage children and has undergone psychiatric/hormonal treatment after a diagnosis of gender identity dysphoria and sterilisation, can undergo sex reassignment surgery. A person must be 19 years old or older. Parental consent is required for minors to undergo sex reassignment surgery.

Ms Park highlighted the fact that South Korea is a conscription country, which requires all male citizens to serve in the military. Yet, under Article 136 of the Enforcement Decree of the Military Act, transgender men cannot serve in the military. Transgender women, who are legally male, are exempt from military service upon submitting a psychiatric certificate.

With regard to toilet use, Ms Park said that while the Public Toilets Act required segregated facilities based on sex, the Act did not contain any provisions with regard to the right of transgender people to use toilets that conformed with their sexual identity.

As for family law rights of transgender people, Ms Park mentioned that South Korean law does not recognise same-sex marriage and that transgender people can only marry persons of the opposite gender. Transitioning during a subsisting marriage is not allowed. If married people want to change their sex, they must first divorce their spouses. If transgender people were married, they could adopt children.

As part of the preparation for the session, panellists were asked to fill out a questionnaire. Ms Park wrote that sex reassignment is considered cosmetic surgery and is not covered by national health insurance or private insurance companies. She also indicated that on 21 December 2007, the Korean Government had retitled the existing Criminal Administration Act to the Administration and Treatment of Correctional Institution Inmates Act^[10] and discrimination based on ‘sexual orientation’ is prohibited. However, many prison officials do not understand the rights of transgender people – many transgender inmates are housed in prisons that do not match their sexual identity. Lastly, she wrote that although there have been cases where LGBTI people were granted asylum in South Korea, most cases pertained to gay or bisexual people. It was rare for transgender people to be granted asylum.