SOUTH KOREA: SUPREME COURT RULING ON LEGAL GENDER RECOGNITION AN IMPORTANT STEP FORWARD FOR TRANSGENDER RIGHTS

The right to legal gender recognition is derived from a number of fundamental rights protected in both domestic and international law 

Today’s South Korean Supreme Court decision that having children of minor age should not immediately be the reason to refuse to recognize the legal gender of transgender persons is an important step forward for human rights, Amnesty International said.

“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.

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.

There is no law 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.