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Investigation and Remedies for Discrimination based on Sexual Preference (Orientation) [2003] KRNHRC 33 (31 March 2003)

`Sexual orientation,' unlike sexual identity, is an already existing inclination of
individual regardless of consciousness or perception of the individual
him/herself. It pertains to what sex a person is attracted to sexually and
emotionally. That is, sexual orientation means that a person is sexually and
emotionally interested in a person of a specific sex. The concept of sexual
orientation includes all emotional sexual behaviors. Those whom we generally
refer to as homosexuals are those whose sexual orientation is such that they are
attracted to others of the same sex, emotionally, sexually, and physically. In the
past, homosexuality was regarded as a mental disease. However, in 1972, the
American Psychological Association deleted homosexuality from the category of
pathological diseases, and now homosexuality is seen as one of several natural
sexual orientations.

The complainants (two including one from the Human Rights
Association) filed complaints against the chairman of the Youth Protection
Commission, one on October 15, 2002, and the other on December 23, 2002,
stating that (1) under the provisions of [Attached Table 1] relating to Article 7
of the `Enforcement Decree of the Youth Protection Act,' `homosexuality' is
stipulated as a standard for case deliberation of medium detrimental to youths,
and that (2) this is in violation of human rights based on sexual orientation.
The complainants demanded that the word `homosexuality' be deleted from the
provisions of the above said Decree.

After investigation, the Commission concluded that the right of sexual
determination is a right to decide sexual acts and choose counterparts. As such
sexual acts include homosexuality, the provisions which describe homosexuality
as abnormal and prohibit youths from access to media which depicts
homosexuality as a `medium detrimental to youths' is in violation of rights of
sexual determination of homosexuals, that is, the right to pursue happiness.
This is recognized as an act in violation of the right of equality under Article
11 of Constitution against homosexuals based on sexual preference without
reasonable grounds. In addition, Article 21 of the Constitution guarantees
freedom of expression. As freedom of expression should be guaranteed to the
maximum possible degree as long it does not infringe on the honor or rights
of other people, public morality, or social ethics. As long as there are no
grounds for classifying homosexuality under the above listed conditions to
restrict rights, the freedom of expression on homosexuality should be
guaranteed.

On March 31, 2003, the Commission recommended that the Youth
Protection Commission delete `homosexuality' from the standards for case
deliberation of medium detrimental to youths in [Attached Table 1] relating to
Article 7 of `Enforcement Decree of the Youth Protection Act.' The Youth
Protection Commission accepted the recommendation, and revisions to the
applicable provisions are being made.