The Seoul High Court ruled that transgender people who have been persecuted in their countries for their gender identity should be recognized as refugees under the Korean Refugee Act on October 18, 2022. It is the first ruling in Korea that acknowledges transgender as a refugee. The court ruled that it corresponds to the reason for refugees set by the Korean Refugee Act.
A is a biological male, but A acquired the gender identity as a woman at 10. A attended an acquaintance’s wedding celebration in 2014 and was arrested along with 16 other Muslim men on charges of looking like a woman and wearing women’s clothes. After that, A was fined and sentenced to seven days of imprisonment.
A, who left Malaysia in October 2015 to avoid such persecution, applied for refugee status in Korea in July 2017. The immigration authorities and the trial court did not accept A’s refugee application. However, the appellate court reversed the previous judgment and ruled that A was a refugee as set by the Korean Refugee Act. The court concluded that A is a refugee, saying, “There is a high possibility that A’s dignity will be seriously damaged in his home country if his gender identity is revealed to others. Moreover, his home country does not provide any protection for him.
A was punished for revealing his gender identity, and the law does not seem to provide proper treatment. Therefore, this case corresponds to what the Convention on the Status of Refugees defines as persecution.”
Living as LGBTQ in Korea
Historically, Korea has always taken a conservative stance on LGBTQs. It has not been long since sexual minorities were acknowledged as members of society. Thus, given the public opinion in Korea on LGBTQ, the case above is especially noticeable since it is very unusual. Although some people demand the refugee case to be the start of Korea becoming more open to sexual minorities, there are more conservative arguments on LGBTQs in Korea.
How have sexual minorities been treated in Korea? Not only from a personal perspective but also Korean law maintains a conservative attitude toward LGBTQ. Civil law prohibits same-sex marriage. In addition, according to Article 92-6 of the Military Criminal Act, homosexual intercourse in the army can be punished, even under an agreement.
Even though the Anti-Discrimination Act indicates that Korea prohibits discrimination on sexual orientation and gender, the punishment for discrimination is merely a recommendation. Therefore, discriminatory words or actions are only adviced by the National Human Rights Commission of Korea, but there is no ground for any criminal punishment.
In 2017, the Chief of Staff of the Army ordered a search for homosexual soldiers and criminal punishment, and human rights violations occurred during the investigation. In the wake of a video of a soldier having sex with a man posted on social media, the investigation team singled out homosexual soldiers based on violations of Article 92-6 of the Military Criminal Code.
Then, the soldiers were asked irrelevant questions that may have amounted to sexual harassment, including questions about their first sexual experience, exposure to pornography, and sexual orientation. According to what the soldiers’ said, the investigation team took away mobile phones from soldiers and forced them to point out homosexual soldiers among them. This case also shows how LGBTQs have been treated in Korea.
Many countries of today are trying to stabilize the status of sexual minorities in their legal systems. For instance, same-sex couples have the same rights and obligations as opposite-sex couples in Germany. They are considered the same as opposite-sex couples in every legal status, such as inheritance, divorce benefits, health insurance, immigration, and healthcare.
In 2004, the right of adoption was also amended for same-sex couple. The Anti-Discrimination Act of Germany also tries to eliminate discrimination against any sexual identity or orientation by designating more specific details. Many Western countries, as well as Germany, put much effort into guaranteeing the rights of LGBTQs within the legal system.
The UOS Times interviewed student J from France and student C from Korea for opinions. The following is an interview with student J.
Q1. How does your home country treat LGBTQ people in the legal system?
A1. LGBTQ rights, such as same-sex marriage and adoption, are well guaranteed within the law. I believe the punishment for LGBTQ discrimination in my home country is much stricter than in Korea. The legal system in my country states that sexual orientation or identity cannot be the reason for discrimination.
Q2. What do you and the people in your country normally think of them?
A2. Although the bill prohibits discrimination against LGBTQ, many people still have discriminative views of them. However, compared to Korea, people are more open-minded about LGBTQ people.
The following is an interview with student C.
Q1. How does your home country treat LGBTQ people in the legal system?
A1. The Korean legal system still tends to be conservative when concerned with LGBTQ. Same-sex marriage is prohibited, and I have seen many articles that strictly sanction homosexuality in the military. Korea seems to have a conservative legal system regarding LGBTQ compared to other countries.
Q2. What do you and the people in your country normally think of them?
A2. Many people still seem to be skeptical of LGBTQ people. In particular, the older generation has more reluctance toward them. It is one of the strictest taboos in Korean society. Some LGBTQ people are afraid to even reveal their gender identity.
As such, sexual minorities in Korea have never been properly recognized in people’s perceptions, nor in the legal system. South Korea, gradually gaining fame worldwide and taking steps toward a multicultural society, is still conservative toward LGBTQ people. Whether the case where Korea acknowledged transgender as a refugee can be the beginning of sexual minorities finding their legal positions is drawing considerable attention.
Lee Seung-Bum
okok3037@uos.ac.kr