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Investigation and Remedies for Discrimination based on family Status [2003] KRNHRC 37 (7 May 2003)

`Family status' discrimination refers to those discriminatory acts based on form
of a family such as with regard to marital status (single parent families,
remarriage, etc.) and guardianship. A major case of family status related
discrimination filed with the Commission is as follows:
The complainant (mother of victim, a student of Elementary School)
filed a petition arguing that Paragraph 3, Article 21 of the `Enforcement
Decree' of the `Elementary/Middle School Education Act' defines a `guardian'
too narrowly as only a person with parental authority or a sponsor, and for that
reason, the application of the complainant, who was raising and protecting the
child in question, to transfer the child to another school while remaining at the
same residence, was rejected.

After investigation, the Commission found that the intent of the provision,
which requires consent of one guardian when recommending a school transfer
for an elementary school student without change of residence, was to guarantee
the right of the student to education, rather than to protect the right of a person
in parental authority or a sponsor. Further, given that the recommendation on
school transfer can be made when the educational environment of a student
needs to be changed due to family matters, etc., the scope of guardianship
includes not only a person in parental authority or a sponsor, but also a person
who actually raises and protects the child. As such, the rejection of the
application to transfer the child on the grounds that there is no consent from
a person in parental authority or a sponsor is in violation of the rights of the
elementary school student, who is under protection of a person who is not in
parental authority or a sponsor, to pursue happiness under Article 10 of the
Constitution, and in violation of the right of equality of the elementary school
student under Article 11 of the Constitution.

On May 7, 2003, the Commission recommended that the Minister of
Education & Human Resources Development revise the definition of `guardian'
in the Paragraph 3, Article 21 of the `Enforcement Decree of the
Elementary/Middle School Educational Act' to include a person in parental
authority or a sponsor. The Minister accepted the recommendation issued by
the Commission.