Prime Minister Han Duck-soo
Office of the Prime Minister
Central Government Complex 77-6 Sejongno, Jongno-gu
Seoul South Korea 110-760
Dear Prime Minister Duck-soo,
In the wake of a Ministry of Justice decision to exclude a range of categories from the protection of the proposed non-discrimination law, the Cabinet should show leadership and reintroduce the dropped categories to protect the widest possible number of South Koreans from discrimination. South Korea has shown leadership, domestically and internationally, in support of human rights, and the proposed bill could represent a continuation of that commitment. As the Cabinet conducts its review of the bill, I urge you to uphold South Korea’s obligations to defend human rights for all and to recognize that protection against discrimination in the proposed law should be in the broadest possible terms, including protection on the basis of sexual orientation and gender identity.
As you know, the draft legislation was developed by the Ministry of Justice’s Bureau of Human Rights and announced on October 2 (Announcement No. 2007-106). The non-discrimination law proposed at that time would have prohibited discrimination on the basis of “sex, disability, military status, age, nationality, ethnicity, race, skin color, language, origin of birth, appearance, marriage status, pregnancy status, family type, religion, ideology or political belief, criminal or detention record, sexual orientation, educational status, [or] social status” (Chapter 1, Article 3). However, according to news reports and Representative Roh Hoe-chan of the National Assembly, the current version of the bill scales back its original definition to exclude discrimination on the basis of military status, nationality, language, appearance, family type, ideology, criminal or detention record, sexual orientation, and educational status (Christian Today 11/2/07). The inclusion of these issues in the original version of the bill suggests there was a basis of concern for the well-being of people with minority experiences in these areas. The subsequent exclusion of these issues suggests a tacit approval for discrimination against groups that need protection.
The original non-discrimination bill was recommended by the National Human Rights Commission and was consistent with the categories addressed under its constitutive National Human Rights Act of 2006 (Act No. 6481), including “sexual orientation” (Chapter 1, Article 2, Paragraph 4). The only categorical disparities were “language” and “military status,” which the proposed non-discrimination law would have included.
As you are aware, the inclusion of sexual orientation in the bill had come under attack. The law has been opposed by the Congressional Missionary Coalition (Uihoe-Sungyo-Yoenhab), a coalition of conservative members of the National Assembly and headed by Mr. Kim Young-Jin, former Minister of Agriculture and Forestry. The Coalition planned to hold forums in November to oppose the law. Additionally, a petition was sent to the Ministry of Justice and other branches of government alleging that if the bill were to become law, “homosexuals will try to seduce everyone, including adolescents; victims will be forced to become homosexuals; and sexual harassment by homosexuals will increase.” The petition was spearheaded by the Assembly of Scientists Against Embryonic Cloning (Baeah-Bokjerul-Bandae-Hanun-Moim), which is directed by Professor Gill Wonpyong of Pusan University. Professor Gill has stated, "If homosexuality is allowed, the morals of our society will immediately collapse and the society will become a world of animals" (Newspower 10/23/2007). Such untrue and prejudicial allegations are not only wholly unfounded, insulting and degrading to lesbian, gay, bisexual and transgender Koreans, but they create a climate of hostility and hatred that can endanger the well-being of lesbian, gay, bisexual and transgender people in South Korea. By caving in to opposition, what could have been a progressive bill has been hollowed out to exclude people who experience discrimination.
The principles of non-discrimination and equality are at the foundation of the international human rights system, under which South Korea is obliged to fulfill its commitments. The Universal Declaration of Human Rights (UDHR) establishes that “all human beings are born free and equal in dignity and rights” (art. 1) and “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind” (art. 2(1)). These principles are reiterated throughout the international bill of rights and the four international treaties which together round out the major international human rights covenants. 1 Thus, the principle of non-discrimination is a core treaty obligation and a non-derogable norm. The enjoyment of all the rights guaranteed under the core treaties without discrimination is not subject to progressive realization; it has been defined as an immediate obligation. 2
The protection of lesbian, gay, bisexual and transgender people is part of South Korea’s duty-bound obligations under international law and standards, which prohibit discrimination on the basis of sexual orientation. The International Covenant on Civil and Political Rights (ICCPR), to which South Korea acceded in 1990, affirms the equality of all people in articles 2 and 26. In the 1994 case of Nicholas Toonen v Australia, the Human Rights Committee, the international body of experts that monitors compliance with the ICCPR, found that both these provisions should be understood to include sexual orientation as a status protected against discrimination. Specifically it held that “reference to ‘sex’ in articles 2, para. 1 and article 26 is to be taken as including sexual orientation.” Likewise, the United Nations Committee on the Rights of the Child, the international body of experts that monitors compliance with the Convention on the Rights of the Child (CRC), to which South Korea acceded without reservation in 1991, has also affirmed in its General Comments that the convention’s prohibitions on discrimination (art. 2) are taken to include “sexual orientation.”3
United Nations treaty bodies have expressed concern when governments fail to include sexual orientation in their non-discrimination legislation. The Committee on Economic, Social and Cultural Rights, the international body of experts that monitors compliance with International Covenant on Economic, Social and Cultural Rights (ICESCR), to which South Korea acceded in 1990, has repeatedly expressed concern with Hong Kong’s failure in this area. 4
United Nations treaty bodies have commended governments which have passed non-discrimination legislation that is inclusive of sexual orientation. The Committee on the Elimination of Discrimination against Women, charged with interpreting and monitoring compliance with the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), to which Korea acceded in 1984 without reservation, has commended the governments of Sweden and New Zealand for the their recognition in this area. 5
At the United Nations Human Rights Council, the highest United Nations body charged with monitoring human rights, South Korea, a current member of the Human Rights Council, along with fifty-three other states, previously delivered a statement at the third session recognizing the abundance of evidence of human rights violations on the basis of sexual orientation and recommending that these issues receive attention from the UN and civil society. 6 At the 4th Session of the Human Rights Council, there were a range of such references. In particular, the Special Rapporteur on Contemporary forms of racism, racial discrimination, xenophobia & related intolerance, Doudou Diène 7 and the Independent Expert on Minority Issues, Gay McDougall, 8 recommended the establishment of non-discrimination laws which would address disadvantaged groups, including people in need of protection because of their sexual orientation
Finally, the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, a set of international legal principles drafted by a distinguished group of human rights experts and released in 2007, draw together these international protections for equality and non-discrimination. The Principles urge states to “[a]dopt appropriate legislative and other measures to prohibit and eliminate discrimination in the public and private spheres on the basis of sexual orientation and gender identity” (Principle 2, Paragraph c).
Human Rights Watch notes with concern that the legislation in original and current form lacks explicit protection for transgender people. The South Korean Supreme Court ruled last year that transgender individuals who undergo sex reassignment surgery are entitled to legal identity change (2004Se42). This is a vital step but does not protect them from the multiplicity of human rights violations they experience. Transgender people are some of the most at risk of discrimination in employment, education, housing, and healthcare. Many transgender people are rejected by their families.
In its prior recognition of vulnerability on the basis of sexual orientation, South Korea has demonstrated international leadership and an intention to uphold and respect international law. A federal non-discrimination law would deepen its domestic commitment to oppose discrimination and would fulfill its international obligations to ensure that all within its jurisdiction can enjoy the full spectrum of human rights. However, a non-discrimination law must be inclusive. I urge you to re-introduce sexual orientation and all other categories since excluded into the draft non-discrimination law, work toward developing protection for all people against discrimination based on gender identity, and support the bill’s full realization into law.
Lesbian, Gay, Bisexual and Transgender Rights Program
Mr. Roh Moo-hyun, President of South Korea
Mr. Lim Chae-Jung, Speaker of the National Assembly
Mr. Roh Hoe-chan, Representative of the National Assembly
Mr. Chung Soung-jin, Minister of the Ministry of Justice
Mr. Hong Gwan-pyo, Officer of the Bureau of Human Rights, Ministry of Justice
Mr. Ahn Kyong-Whan, Chairperson of the National Human Rights Commission
Mr. Kim Hyun Chong, Ambassador, Permanent Mission of the Republic of Korea to the United Nations
1 International Convention on the Elimination of all forms of Racial Discrimination (CERD), 1965, 660 UNTS 195; International Convention on the Elimination of All forms of Discrimination against Women (CEDAW), 1979, 1249 UNTS 13; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984, GA Res. 39/46; Convention on the Rights of the Child (CRC), 1989, GA Res. 44/25.
2 See: The nature of States parties obligations (Art. 2, par.1) General comment 3, December 14, 1990, and General Comment No. 14, The right to the highest attainable standard of health: 11/08/2000. E/C.12/2000/4.
3 Committee on the Rights of the Child. General Comment No. 4: Adolescent health and development in the context of the Convention on the Rights of Child, CRC/GC/2003/4, July 1, 2003.
4 Committee on Economic, Social and Cultural Rights. Concluding Observations: China, E/C.12/1/Add.107, May 2005; Concluding Observations: (Hong Kong) China, E/C.12/1/Add.58, May 21, 2001.
5 Committee for the Elimination of Discrimination against Women. Concluding Observations: Sweden, A/56/38, July 31, 2001; Concluding Observations: New Zealand, A/49/38, April 12, 1994.
6 Third Session of the Human Rights Council. Joint Statement presented by Permanent Mission of Norway to the United Nations and Other International Organizations in Geneva. Geneva, December 1, 2006.
7 A/HRC/4/19; para. 69